Anonymized Legal Opinion Summary
Factual and Procedural Background
The Father, Mother, Older Child, and Younger Child lived in the Requesting Country. During a family visit to the Requested Jurisdiction, the Mother announced that she intended to remain there with the children. The Father did not consent and petitioned under article 12 of the Hague Convention for their return. [1][2]
The Mother accepted that the children had been wrongfully retained but relied on article 13(b), alleging a grave risk of psychological harm or an intolerable situation. Her case concerned unstable housing and schooling, uncertain healthcare, financial insecurity, alleged domestic abuse, separation from the children, and a risk of suicide. [3][4][5][6][7][8]
The first-instance court found the article 13(b) defence established for the Younger Child but not the Older Child. It ordered the Older Child's return after giving substantial weight to his wish to return. [9][10][11][12][13][14]
The appellate court held that the Older Child's views were legally irrelevant to whether his circumstances would be intolerable. Excluding those views, it found the article 13(b) defence established and refused his return. [15][16][17][18]
The Supreme Court granted the Father and Older Child permission to appeal. It unanimously concluded that the appellate court had erred by excluding the Older Child's views, but dismissed the appeal because the first-instance findings compelled the conclusion that his return presented a grave risk of intolerable psychological harm. [19][20][21][22]
Legal Issues Presented
- Whether a child's views may be considered when determining under article 13(b) whether return creates a grave risk of physical or psychological harm or an intolerable situation. [23][24]
- Whether the appellate court was entitled to interfere with the first-instance exercise of discretion to order return notwithstanding an established article 13(b) defence. [25][26][27]
- Whether the first-instance court was required to determine if the Older Child's views had been manipulated before assigning them weight. [28][29]
- Whether the first-instance risk analysis was flawed and its findings necessarily established the article 13(b) defence despite consideration of the Older Child's views. [30][31][32]
Arguments of the Parties
Father's and Older Child's Arguments
- The first-instance court was entitled to consider the Older Child's views when assessing grave risk and intolerability. [23][25]
- Even if the defence was established, the first-instance court could order return in its discretion, and the appellate court should not have interfered. [25][26]
- The appellate court failed to consider the Older Child's views when exercising its discretion. [26][27]
- The Father argued that the appellate court wrongly treated the approach in In re D as eliminating the statutory discretion. [26][27]
- They suggested that a rehearing might be appropriate because the Mother's suicide risk could have declined after the Younger Child was permitted to remain, although no evidence supported that proposition. [33][34]
Mother's Arguments
- The assessment of intolerability was objective, and the Older Child's subjective wishes could not negate or mitigate the identified psychological risk. [35]
- If the child's views were relevant, the first-instance court should have resolved whether they resulted from manipulation by the Father. [28][29]
- The first-instance analysis understated the nature of the risk; its findings should have led to the conclusion that article 13(b) was established. [30][31][32]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619 |
Children should generally have an opportunity to be heard in Hague Convention proceedings; hearing them does not require giving effect to their views. |
The Court held that the Older Child's views had to be considered, although their weight remained for judicial determination. It also relied on the case when examining discretion after grave risk is established. [36][37][38][39][40][41][42][43][44][45][46][47] |
| In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 |
Authority cited by the Mother concerning appellate correction of flawed risk analysis. |
The Mother relied on it to contend that the first-instance conclusion was wrong. [30] |
| In re H-W (Children) [2022] UKSC 17; [2022] 1 WLR 3243 |
Authority cited concerning errors in evaluating the nature of risk. |
The Mother invoked it in support of preserving the refusal of return. [30] |
| In re JR123 [2025] UKSC 8; [2025] AC 1256 |
Authority cited concerning flawed judicial risk analysis. |
The Mother relied upon it in challenging the first-instance article 13(b) determination. [30] |
| In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 |
Article 13(b) uses a grave-risk threshold, applies the balance of probabilities, requires a forward-looking assessment, and may employ a staged approach to disputed allegations and protective measures. |
The Court applied these principles to distinguish a merely real risk from a grave risk, to assess intolerability objectively for the particular child, and to recognize that even a low risk of extremely serious harm may be grave. [48][49][50][51][52][53][54][55][56][57][58][59] |
| AD v SD [2023] CSIH 17; 2023 SLT 439 |
Protective measures must be balanced against the assessed risk. |
The Court cited the “slide rule” balance between the seriousness of the risk and the effectiveness of proposed protection. [60] |
| In re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10; [2012] 2 AC 257 |
The staged approach forms part of the general reasoning process under article 13(b), not merely domestic-abuse cases. |
The Court explained that the approach may apply to other disputed allegations, although not universally. [61] |
| In re R (Children) [2024] EWCA Civ 1296; [2025] Fam 67 |
A taking parent's assertion that they will not return must be closely and contextually scrutinized rather than assumed true. |
The Court endorsed a reasoned assessment addressing genuineness, health, tactical motivation, and possible changes of position. [62][63][64] |
| Director-General, Department of Families v RSP [2003] FamCA 623; (2003) 177 FLR 169 |
A claimed suicide risk must not be disregarded but must be examined with great care. |
The Court agreed that a genuine suicide risk and resulting harm to a child must be assessed despite concerns about tactical claims. [65][66][67][68] |
| In Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2008] AC 1288 |
Courts increasingly take account of children's views; discretion technically remains after article 13(b) is established. |
The Court used the case to support consideration of the child's views and the practical improbability of returning a child to a grave risk. [69][70][71] |
| FPS v SM [2024] CSIH 20; 2025 SC 61 |
Proceedings under the Hague Convention may constitute a relevant function under domestic legislation incorporating the UNCRC. |
The Court noted the issue but did not decide it because no party advanced that submission. [72][73] |
| MP v Greece (Application No 2068/24), judgment of 9 September 2025 |
Article 8 ECHR may impose a procedural obligation to consider hearing children in international-abduction proceedings. |
The Court treated the decision as consistent with considering a sufficiently mature child's views in assessing grave risk. [74][75][76][77] |
| KJ v Poland, Application No 30813/14, 1 March 2016 |
Separation from the taking parent does not automatically satisfy article 13(b). |
The principle was cited through the Strasbourg analysis. [78][79] |
| MK v Greece, Application No 51312/16, 1 February 2018 |
The expressed wishes of a child with sufficient understanding are important in proceedings concerning that child. |
The Court relied on this Strasbourg principle as support for considering children's views. [80][76] |
| Re X (A Child) [2026] EWCA Civ 518; [2026] 2 FLR 270 |
A court should determine, where possible, whether and to what extent a child's views result from manipulation. |
The Court held that manipulated views deserve little or no weight, while accepting that the first-instance judge was entitled not to resolve the issue on the available evidence. [81][82][83] |
| In re S (A Child) (Abduction: Article 13(b): Mental Health) [2023] EWCA Civ 208; [2023] 3 FCR 317 |
Hague Convention jurisdiction requires a summary decision on the evidence at the hearing and is not a “wait and see” jurisdiction. |
The Court relied on this principle to determine the application itself rather than order a rehearing. [33][34] |
Court's Reasoning and Analysis
Article 13(b) places the burden on the person opposing return and requires proof, on the balance of probabilities, of a grave risk rather than merely a real risk. The inquiry is predictive and asks whether the particular child could reasonably be expected to tolerate the situation upon return. [49][50][54][55][56][57]
A child's views may relate to any aspect of article 13(b), including physical harm, psychological harm, and intolerability. Giving a child an opportunity to be heard does not make those views determinative; relevance and weight depend on age, maturity, authenticity, and the subject addressed. [43][44][84][85][86][87]
The appellate court therefore erred by excluding the Older Child's views as a matter of law. His views should have been considered, subject to the court determining their proper weight. [45][46]
The first-instance court was nevertheless entitled to leave unresolved the disputed allegation that the Father's manipulation affected those views. Although manipulated views would merit little or no weight, the evidence did not compel the judge to resolve that factual dispute. [81][82][83][88]
The first-instance findings established that the Mother genuinely would not return, that there was a real risk of suicide, and that her suicide would cause the Older Child extreme psychological harm. Because exceptionally serious harm can make even a low probability legally “grave,” those findings compelled the article 13(b) conclusion. [32]
Additional uncertainty concerning accommodation, education, healthcare, lifestyle, and anxiety about the Mother's mental health compounded the risk. [89]
The Older Child's views did not negate that risk. Their authenticity was unresolved, and his evidence assumed that the Mother remained alive and available for visits; it did not address how he would react if she died by suicide. It would have been inappropriate to ask him to contemplate that event. [90][91]
The first-instance discretionary analysis was also defective. Article 13(b) is binary rather than “borderline,” and the judge did not give adequate consideration to why the child should be exposed to a grave risk of intolerable psychological harm. The appellate court was therefore entitled to exercise the discretion itself. [92][93][47][94][95]
A rehearing was unnecessary because Hague proceedings require expedition, the first-instance findings were sufficient, and there was no evidence of a material change in the Mother's condition. [33][34][96]
Holding and Implications
APPEAL DISMISSED; REFUSAL OF RETURN AFFIRMED. The Court held that a child's views may be considered throughout the article 13(b) assessment, but those views are not determinative and must be assigned weight according to their authenticity, relevance, age, and maturity. [45][46][97][98]
The article 13(b) defence was established because the Older Child faced a grave risk of psychological harm that he could not reasonably be expected to tolerate. There was no basis to exercise discretion to order his return. [99][100][101]
The direct consequence is that the Older Child will not be returned under this Hague Convention petition. The decision also clarifies that courts must hear and consider appropriate child views without treating them as controlling or allowing them to negate risks they do not actually address. [46][91][97][98]